Court File and Parties
Court File No.: CV-12-5705-00 Date: 2021 02 19 Ontario Superior Court of Justice
Between: EVER FRESH DIRECT FOODS INC., Plaintiff And: JAMIA ISLAMIA CANADA LTD., Defendant
Before: P.A. Daley J.
Counsel: Haider Bahadur, for the Plaintiff Anser Farooq, for the Defendant
Heard: November 30, 2020
Reasons for Decision on Motions under Rules 48.11 and 24.01
Introduction
1The plaintiff brought a motion to have this action restored to the trial list pursuant to rule 48.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
2The defendant brought a cross-motion seeking an order dismissing the action for delay pursuant to rule 24.01, along with several other forms of alternative relief.
3For the reasons set out below, the plaintiff's motion is dismissed, and the defendant's motion is granted, dismissing this action.
Background & Evidentiary Record
4This action is one of many court proceedings instituted by the plaintiff and its principal Abdul Razak Alyousef ("Alyousef") in an unrelenting campaign of civil actions brought against the defendant and its representatives.
5In 2008 these parties are alleged to have entered into a commercial arrangement whereby the plaintiff provided to the defendant, which operates as a mosque, an interest-free loan in respect of the defendant's indebtedness related to a property located at 2380 Tedlo Street, Mississauga, Ontario (the "Property"). As part of this financial arrangement, it is alleged by the plaintiff that the defendant agreed to lease to it an adjacent unit on the Property for a nominal monthly rent.
6The interest-free loan was incorporated in a Loan Facility Agreement in May 2008, which provided for a maximum drawdown of $1 million on the conditions that the loan was repayable on demand and it was to be secured by a collateral second mortgage on the Property in favour of the plaintiff.
7The parties also entered into the referenced lease in February 2008, whereby the plaintiff was the tenant and the defendant the landlord, for a period of 10 years. The lease required that the plaintiff pay monthly rent of one dollar, plus GST and its proportionate share of the maintenance and insurance costs.
8In the spring of 2012, the parties’ financial arrangement was failing and as a result the plaintiff ceased advancing monies under the loan agreement to the defendant and the defendant terminated the plaintiff's tenancy.
9The plaintiff instituted these proceedings against the defendant in October 2012, initially by a Notice of Application which was converted into an action by the order of André J. in March 2013.
10The evidence adduced on these motions shows that the plaintiff and its principal have instituted the following proceedings against the defendant in relation to the loan advanced by it to the defendant and in respect of the Property:
(a) October 22, 2012 – The within proceeding was commenced and subsequently converted into an action in March 2013. A certificate of pending litigation was registered by the plaintiff against the Property;
(b) December 9, 2013 – The plaintiff instituted an action against the defendant related to the Property and the plaintiff's lease wherein the plaintiff sought damages against the defendant as a bailee of goods and chattels. That action was dismissed following a summary judgement motion;
(c) November 27, 2015 – The plaintiff's principal Alyousef brought an action against the defendant and four other defendants in respect of the parties' financial arrangement, asserting multiple causes of action including breach of trust, fraud and conspiracy;
(d) May 2016 – Alyousef instituted an action against the defendant and then, in a Fresh As Amended Statement of Claim, alleged conspiracy, forgery, fraud and further that the Court of Appeal failed to understand his case in that court's finding of contempt against him. In February 2018, the plaintiff moved to add new defendants, including the defendant's lawyer and former lawyers who had represented the defendant; and
(e) August 28, 2017 – the plaintiff Alyousef instituted an action against the defendant alleging malicious prosecution.
11As a result of the conduct of the plaintiff and Alyousef in one of the related actions referenced above, in his order of November 4, 2013, Barnes J. concluded that the plaintiff and Alyousef had breached several orders of the court and that in doing so they were held in contempt of court.
12On appeal from the order of Barnes J. on December 5, 2014, the Court of Appeal upheld Barnes J.'s five findings of contempt in respect of the plaintiff and Alyousef arising from their breaches of the terms of orders granted by Ricchetti J. and Gray J.
13While the findings of contempt against the plaintiff and its principal in another action are not determinative of the outcome of these motions, for the reasons detailed below, this evidence goes to the credibility of the plaintiff and Alyousef as to the assertion that the plaintiff intended in good faith to prosecute the within action.
14Similarly, as to the plaintiff's good faith intention to comply with court orders and to prosecute this action in a timely manner, the plaintiff and Alyousef have failed to pay the costs award made against them in the contempt proceedings in the sum of $56,300, which sum has been owing for over six years.
15As to the history of this action, the following are the significant events:
(a) October 22, 2012 – Notice of Application issued;
(b) March 14, 2013 – As per order of André J., application converted into action;
(c) August 27, 2013 – Plaintiff issued and served the statement of claim;
(d) September 30, 2013 – Defendant served and filed statement of defence;
(e) November 13, 2017 – Counsel for the plaintiff wrote to counsel for the defendant requesting the scheduling of examinations for discovery for March 2018;
(f) February 1, 2018 – Counsel for the defendant wrote to plaintiff's counsel requesting payment of outstanding costs in the sum of $56,300;
(g) April 4, 2018 – Plaintiff brought a motion in the within action before the Superior Court of Justice returnable on August 23, 2018, seeking to vary the order of the Court Of Appeal of December 5, 2014, whereby the time for payment of the outstanding costs would be varied from "payable forthwith" to "30 days prior to the trial of this action". Although counsel for the plaintiff served and filed this motion, it did not proceed, in spite of the defendant having prepared substantial responding materials;
(h) April 11, 2018 – Plaintiff's counsel set this action down for trial;
(i) August 23, 2018 – Counsel for the defendant submitted the Report of Counsel to the trial coordinator at Brampton, wherein it is stated among other things that documentary discovery and oral discovery have not been completed;
(j) August 28, 2018 – Counsel for the defendant and a student-at-law on behalf of the plaintiff attended before the Assignment Court. Counsel for the defendant advised the court that the defendant opposed the scheduling of a pretrial conference and the listing of the case for trial as documentary discovery and oral discovery had not been completed. As the presiding judge, I determined that the case was not trial-ready and so the case was struck from the trial list;
(k) May 15, 2019 – Plaintiff's counsel wrote to counsel for the defendant proposing dates for a motion seeking an order restoring the case to the trial list;
(l) July 21, 2019 – Counsel for the plaintiff served counsel for the defendant with a Notice of Motion and a discovery plan with proposed motion dates in September and October 2019;
(m) August 6, 2019 – Counsel for the defendant wrote to counsel for the plaintiff advising that the defendant will bring a cross-motion in respect of the plaintiff's proposed motion to have this action restored to the trial list;
(n) September 19, 2019 – The motion and cross-motion were scheduled returnable for May 27, 2020; and
(o) As a result of the Covid-19 pandemic, the motions could not proceed on the date scheduled and they were made returnable on November 30, 2020 via Zoom.
Legal Framework for Motions under Rule 48.11
16The applicable procedures, the respective burdens of proof and onus of proof in motions brought under rules 48 and 24 are distinct and must be considered separately under each rule: Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111.
Rule 48.11
17Rule 48.11 provides as follows:
Where an action is struck off a trial list, it shall not thereafter be placed on any trial list except,
(a) in the case of an action struck off the list by a judge, with leave of a judge; or
(b) in any other case, with leave of the court.
18On a motion by a plaintiff seeking an order that an action, which has been struck from the trial list, be restored to the trial list, the plaintiff bears the burden of providing an acceptable or reasonable explanation for the delay in the action and offering evidence that no non-compensable prejudice would be occasioned to the defendant by restoring the action to the trial list: Nissar v. Toronto Transit Commission, 2013 ONCA 361, 115 O.R. (3d) 713, at paras. 23-31.
19It is notable that there is no presumption of prejudice to the defendant simply based on the passage of time; this is a question of fact to be considered in the context of each case: Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, 128 O.R. (3d) 143, at paras. 5, 49-50.
20I agree with the decision of LeMay J. in Cardillo v. Willowdale Contracting et. al., 2020 ONSC 2193, at paras. 49-53, where he determined that where a plaintiff brings a motion under rule 48.11 and the defendant brings a cross-motion under rule 24.01, seeking to have the action dismissed for delay, the motion under rule 48.11 should properly be considered first because if the plaintiff's motion is denied and the action is not restored to the trial list, it will be administratively dismissed in accordance with rule 48.14(1), subparagraph 2. See also: 1051841 Ontario Ltd. v. Toronto, 2014 ONSC 4327 [1051841 Ontario Ltd.]; Gill v. Khindria, 2016 ONSC 5057; S.I.A.S.I. Trading Limited v. Teplitsky, 2018 ONSC 1107, aff'd on appeal, 2018 ONCA 788, at para 10.
21The determination as to what is the relevant period of delay was considered by van Rensburg J.A. in D'Souza v. Brunel International Inc. (ITEEC Consulting), 2019 ONCA 339, at para. 8, where the court stated as follows:
In a motion to restore an action to the trial list, where the effect of refusing the order is to bring the action to an end, the court must determine whether a reasonable explanation has been provided for the relevant period of delay and whether the defendant will suffer non-compensable prejudice if the action is restored to the trial list. Where delay has been addressed in a prior court order, or consented to, it is any subsequent delay that requires explanation. And while the court should not mechanically review each step in an action and require a plaintiff to explain every period of delay, the overall delay of the plaintiff in prosecuting the action is a factor that can inform the court’s assessment of whether an acceptable explanation has been provided by the plaintiff and whether the defendant will suffer non-compensable prejudice if the action is restored to the trial list. [Citations omitted.]
22When considering what is the relevant period of delay in a motion under rule 48.11 or on a defendant's motion to dismiss an action for delay under rule 24.01, the relevant period of delay is assessed on the same principles, namely where prior delay has implicitly been excused or waived by the defendant, or addressed in a court order, the period of delay runs only from the date of the defendant's consent or waiver or the date of the order: Stokker v. Storoschuk, 2018 ONCA 2, 140 O.R. (3d) 473, at para 6. Such consent to delay or waiver of delay by a defendant may occur, for example, when a defendant consents to an order setting a timetable for completion of the remaining steps in the action or allowing for a pleading amendment sought by the plaintiff.
Analysis – Plaintiff's Motion under Rule 48.11
Evidence
23Before turning to consideration of the two conjunctive branches of the test established in Nissar with respect to the plaintiff's motion to restore this action to the trial list, the evidentiary record submitted must first be assessed.
24In support of its motion under rule 48.11 the plaintiff has submitted affidavit evidence from a solicitor in the plaintiff's lawyers' law firm, namely Aditya Dhingra, whose affidavit was sworn on September 24, 2019 and submitted with the plaintiff's motion.
25The plaintiff filed a further affidavit in its supplementary motion record from its solicitor Joshua Meshak, sworn November 9, 2020.
26Finally, the plaintiff served a further affidavit which was in response to the defendant's cross-motion, namely the affidavit of Joshua Meshak, sworn November 24, 2020.
27Counsel for the defendant urged that little weight should be given to these three affidavits because the deponents were all lawyers engaged by the plaintiff. I agree that the form and substance of these affidavits carry minimal evidentiary value on either of the motions before the court.
28There are necessary and appropriate limits on the scope of affidavit evidence on motions and as it relates to these pending motions, rule 39.01(4) is applicable. It reads as follows:
Contents – Motions
(4) An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
29Turning firstly to the affidavit of Aditya Dhingra as sworn on September 4, 2019, in paragraph 1 of the affidavit, the deponent states that he is a lawyer and that he has knowledge of matters to which he deposes and that any information which is not within his personal knowledge is information about which he has been advised by others and which he verily believes is true.
30This affidavit, filed for the purpose of the rule 48.11, in large part reviews the factual history behind the litigation between these parties in paragraphs 2 – 11. In paragraphs 12 through 19 the deponent offers evidence with respect to the commencement of this action by way of a Notice of Application which was later converted into an action following which a statement of claim was served and a statement of defence thereafter filed. There is further evidence with respect to the payment of costs by the plaintiff, however no evidence is provided with respect to the substantial costs award outstanding from the contempt proceedings discussed above.
31The deponent confirms that a trial record was filed on behalf of the plaintiff on April 11, 2018 and that the action was struck off the trial list on August 27, 2018 on the basis that the action was not trial-ready as examinations for discovery had yet to take place.
32The deponent makes the extraordinary statement in paragraph 24 that the plaintiff's lawyers "in good faith relied on the belief that the court would schedule pretrial and trial dates and as such had no reason to suspect that the matter could be struck from the trial list" when the matter came before the assignment court, although it was not trial-ready as no documentary or oral discoveries had been completed.
33In paragraph 25, the deponent states:
I do verily believe that it has always been the intention of the plaintiff to prosecute the within action and although this action has been struck from the trial list the plaintiff seeks to move the action forward by proceeding with examinations for discoveries.
The deponent does not state the source of the information as to the fact that the plaintiff has the intention to prosecute the action.
34Further, in paragraph 28 of the deponent's affidavit he makes the bald assertion, without any factual basis for stating so, that there would be no prejudice to the defendant were the plaintiff's action restored to the trial list.
35In his reply affidavit filed in response to the defendant's motion under rule 24.01, the deponent Joshua Meshak does not comply with the requirements of rule 39.01(4) by stating the source of any information that is not within his personal knowledge and that he verily believes that the statements made are true.
36As to the defendant's assertion that the plaintiff failed to serve an affidavit of documents, the deponent states in paragraph 3 of his affidavit that "records indicate that an affidavit of documents were [sic] prepared and sworn in on November 13, 2013 by the plaintiff's previous counsel…" Notably, the deponent does not state that the affidavit of documents was in fact served upon counsel for the defendant and furthermore, no letter purporting to serve the affidavit of documents has been produced nor an affidavit of service confirming the service of the affidavit of documents. Further, the only copy of an affidavit of documents that appears in the record is incomplete in that the solicitor's certificate that must be completed and dated is blank and therefore noncompliant in any event.
37The deponent further attempts to cast blame on counsel for the defendant for not notifying the plaintiff's solicitors that he would be opposing the scheduling of this action for a pretrial and a trial date in advance of the assignment court date. The deponent further makes the extraordinary admission that a student-at-law was sent to the assignment court on behalf of the plaintiff's solicitors and that he was unprepared and unfamiliar with the file and so unable to properly address the issues raised by counsel for the defendant and by the court.
38In this affidavit, the deponent also attempts to deflect responsibility for the delay in the prosecution of this action, during the latter stages prior to the case being struck from the trial list, by blaming defence counsel for not agreeing to schedule the plaintiff's motion seeking an order to restore the matter to the trial list. This action was struck from the trial list on August 27, 2018.
39It was not until May 15, 2019 that the plaintiff's solicitors wrote to counsel for the defendants advising that they wished to bring a motion to restore this case to the trial list, at which time they were canvassing dates for the return of the motion.
40The plaintiff has failed to offer any evidence whatsoever explaining the delay between the date upon which this action was struck from the trial list, namely August 27, 2018, and when it is stated that the plaintiff's counsel informed defence counsel of their intention to bring a motion to have the action restored to the trial list.
41As to the affidavit submitted in the plaintiff's supplementary motion record, namely the affidavit of Joshua Meshack sworn November 9, 2020, the deponent again devotes a large part of the affidavit to recounting the underlying history to the litigation as to the parties' financial dealings prior to the initiation of the Application in 2012. He then repeats the evidence with respect to the service of the pleadings and correspondence between counsel regarding the settlement of cost awards made against the plaintiff.
42At paragraph 23 of this affidavit, the deponent states that counsel for the defendant was not prepared to arrange for examinations for discovery unless the plaintiff paid the costs outstanding from the contempt proceedings, though the trial record was served and filed on April 11, 2018.
43The deponent, at paragraph 34 of the affidavit, makes the entirely spurious statement that as defence counsel refused to arrange examinations for discovery while the action remained struck from the trial list"the plaintiff followed court procedure by bringing a motion to restore the matter to the trial list."
44The deponent further states, at paragraph 35 of this affidavit, that he verily believes that it was always the intention of the plaintiff to proceed with the action. No source for this information and belief is disclosed by the deponent, contrary to rule 39.01(4).
45Turning to the applicable test that must be met under rule 48.11: as per the decision in Nissar, the plaintiff must satisfy both branches of the test, namely by providing an acceptable or reasonable explanation for the identified delay and further by showing that there would be no non-compensable prejudice occasioned to the defendant.
Explanation for Delay
46As to the period of delay, I have concluded that the time with respect to the calculation of the period of delay must commence when the plaintiff's proceedings in this matter were instituted by a Notice of Application on October 22, 2012.
47There is no evidence of any consent or waiver by the defendant, or an order of the court which would truncate the timeline of delay running from October 22, 2012 to the return of the plaintiff's motion under rule 48.11, apart from the necessary adjournment of the motion from May to November 2020 because of the scheduling impact flowing from the COVID-19 pandemic.
48The evidence adduced by the plaintiff contains no reasonable explanation whatsoever for the delay in this action proceeding from its inception. The evidence offered by the plaintiff which in any way addresses the delay and asserts the intention of the plaintiff to prosecute the action is hearsay and in violation of rule 39.01(4) and, although technically inadmissible, to a great degree has been considered by me. The evidence adduced is inadequate and does not discharge the onus upon the plaintiff to offer a reasonable explanation for the overall delay.
49I further find that the plaintiff did not serve its affidavit of documents upon the defendant.
50Further, I find that the plaintiff was not trial-ready when this matter appeared before the Assignment Court in August 2018 as the plaintiff still wished to proceed with examinations for discovery, as did counsel for the defendant. The plaintiff should have known full well that a trial date would not be scheduled where these steps had not been completed. Cases are not simply left on a trial list when they are not ready to proceed, as the case would occupy space on a pending trial list which could otherwise be taken by a case which was fully ready to proceed.
51Following the institution of its application and then its conversion into an action, the plaintiff's time was exclusively devoted to responding to contempt proceedings instituted by the defendant which reached the Court of Appeal in December 2014. No steps were taken by the plaintiff to proceed with this action from the institution of its action until the decision from the Court of Appeal in December 2014.
52The plaintiff has failed to offer any evidence explaining the delay in its prosecution of this action from its date of commencement In November 2012 through to the hearing before the Court of Appeal on the contempt proceedings.
53Furthermore, as to the period between December 2014 to November 2017, the plaintiff took no steps to move this action forward by way of exchange of affidavits of documents, conducting oral examinations for discovery or any other procedural step required to advance the action.
54The plaintiff has offered no explanation whatsoever as to the delay in this timeframe.
55In November 2017, the plaintiff's counsel corresponded with counsel for the defendant requesting the examinations for discovery be scheduled for March 2018. Counsel for the defendant opposed the scheduling of the examinations for discovery, given that the plaintiff and its principal Alyousef had failed to pay the costs awarded against them in the sum of $56,300.
56It is notable that at no time did the plaintiff deliver an affidavit of documents and serve a notice of examination upon the defendant's counsel requiring that examinations for discovery of the defendant's representative proceed.
57The next procedural step taken by the plaintiff in April 2018 was an entirely ill-conceived motion brought in the Superior Court of Justice seeking to vary the costs award granted by the Court of Appeal in December 2014. That motion did not proceed.
58After the plaintiff set this action down for trial in April 2018, it was struck from the trial list on August 28, 2018 for the reasons indicated.
59Other than corresponding with the defendant's solicitor indicating that the plaintiff wished to bring a motion to restore this action to the trial list, the plaintiff did not schedule that motion until September 19, 2019 with a return date of May 27, 2020, as a long motion.
60The plaintiff has failed to offer any explanation for the delay in proceeding with the present motion to restore this action to the trial list in the period from when it was struck from the trial list in August 2018 until May 2019 when the plaintiff's counsel simply informed counsel for the defendant that he intended on bringing such a motion, which was not scheduled for a return date until September 19, 2020. Thus, at the minimum, there is an unexplained period of delay of at least nine months following the action being struck from the trial list.
61In examining the timeframe over which delay must be explained by the plaintiff, in the context of a motion under rule 48.11, the court must not take a rigid approach and penalize a plaintiff who cannot adequately explain every minutiae of delay. However, in determining whether an explanation is reasonable or adequate, the totality of the circumstances should be examined including the rights of fairness to both parties and the interests of justice. An acceptable explanation for delay does not require a finding that the explanation for delay is a "good" explanation; however, the court must be satisfied that the explanation is adequate and satisfactory. In 1051841 Ontario Ltd., at para. 16, the court stated that there must be
“some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply” with deadlines in the rules. The test is "satisfaction, not perfection" nor should "every possible issue of delay" be seized upon to prevent the plaintiff having his or her day in court, particularly if it is "a small, explicable delay”. [Citations omitted.]
62In the circumstances of this case, I have carefully considered the affidavit evidence submitted on behalf of the plaintiff in support of its motion and I can find no adequate or reasonable explanation for the delay in the prosecution of this case.
63Furthermore, given that the only evidence led by the plaintiff in support of its motion was presented through affidavits submitted from its legal counsel and not from Alyousef or some other duly authorized officer or representative of the plaintiff corporation, I have concluded that it is open to me to draw an adverse inference from the failure of the plaintiff to put forward evidence from a deponent with direct personal knowledge of the history of this litigation and not funnel that evidence through its legal counsel for the purpose of insulating the plaintiff's representatives from cross-examination.
64I have therefore drawn the adverse inference that had the plaintiff put forward Alyousef, or another authorized representative, as its deponent on its motion, that evidence would not have been supportive of the position being advanced by the plaintiff and may in fact have been entirely unhelpful.
65Further, I have considered the unexplained delay within the context of all the circumstances surrounding the litigation in which these parties are involved, including the five findings of contempt against the plaintiff and Alyousef in the other actions referenced above. The plaintiff Alyousef has instituted a series of court proceedings against the defendant and others and has been found in contempt for five breaches of court orders. Further, the plaintiff and Alyousef have failed to pay significant costs awards and have offered no explanation for that.
66These features of the plaintiff's conduct in the context surrounding the within action all lead me to the conclusion that the plaintiff and its officer have little regard for the orders of the court and the litigation process, such that I have concluded that the plaintiff had no good-faith intention to prosecute this action with any timeliness.
67Further, the plaintiff has tied up the title to the defendant's Property by the registration of a CPL which has been on title for over eight years, while the plaintiff's action has languished.
68In the result, I have concluded that the plaintiff has failed to satisfy the first branch of the test under the Nissar decision by providing evidence of an acceptable, or reasonable explanation for the delay.
69As indicated, the test is conjunctive, not disjunctive, and even if the plaintiff adequately explained the delay, the action will be dismissed if there would be prejudice to the defendant. Furthermore, if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the court to dismiss the action, even if there is no proof of actual prejudice to the defendant: 1051841 Ontario Ltd.; 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67 [6274013 Canada Ltd.].
70The rationale for dismissing cases with lengthy unexplained delay, even when there is no prejudice demonstrated, has been stated by the Court of Appeal in 6274013 Canada Ltd., at para 33, as follows:
As I have noted, the goal of the civil justice system is ensure [sic] "the just, most expeditious and least expensive determination of every civil proceeding on its merits". Consideration of actual prejudice focuses on the just determination of the dispute on its merits. The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits. If that were not the case, the rules and the timelines they impose would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized.
71While I have concluded that the plaintiff's motion to restore this action to the trial list must be dismissed because of the plaintiff's failure to provide any evidence of a reasonable explanation for the delay, without the necessity of considering the question of prejudice to the defendant, for completeness, I will consider that branch of the test from Nissar as well.
Prejudice
72Although there is no presumption of prejudice to a defendant based on the passage of time, the plaintiff on a motion under rule 48.11 must show that no non-compensable prejudice would be suffered by the defendant if the plaintiff's motion were granted and the case restored to the trial list.
73The only evidence offered by the plaintiff in support of its motion regarding possible prejudice to the defendant is by way of bald statements that no prejudice would be suffered by the defendant if the action were restored to the trial list. The plaintiff has offered no evidence whatsoever as to whether relevant documents have been preserved and whether key witnesses are available with detailed recollections of the events in issue, or alternatively that the issues at stake in the lawsuit will not depend on the recollection of witnesses.
74While the defendant has no obligation to provide evidence of actual prejudice unless the plaintiff has adduced evidence to that effect, it is clear that on the whole of the evidentiary record, over 14 years has passed since the transactions in question took place in 2006 and given that the parties and witnesses have not been examined, nor has documentary disclosure been conducted and given the lengthy passage of time, I can reasonably infer that there will be the likelihood of prejudice to the defendant were this action allowed to proceed.
75Thus, quite apart from the plaintiff's failure to provide a reasonable explanation for the delay in the prosecution of this action, the plaintiff has further failed to adduce any evidence that would demonstrate that the defendant would not suffer non-compensable prejudice if this action were restored to the trial list.
76In conclusion, I have determined that the plaintiff's motion under rule 48.11 must be dismissed for the reasons expressed.
Legal Framework and Analysis of Defendant's Motion under Rule 24.01
77Rule 24.01 reads as follows:
(1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings; or
(d) Revoked.
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust.
78The defendant's position on its motion is that the plaintiff breached sub-rules 24.01(1)(c) and (e) and as a result the plaintiff's action should be dismissed for delay. Further, the defendant submits that the plaintiff's action is an abuse of process and should be dismissed under the court's inherent jurisdiction to control its own process.
79The test to be met on a motion seeking to have an action dismissed for delay under rule 24.01 is set out in North Toronto Chinese Alliance Church v. Gartner Lee Limited, 2012 ONCA 251, 12 C.L.R. (4th) 1, at para. 11, leave to appeal refused, [2012] S.C.C.A. No. 248 (S.C.C.), and was restated in Ticchiarelli v. Ticchiarelli, 2017 ONCA 1, at para. 12.
80The jurisprudence under rule 24.01 states that an order dismissing an action for delay under this rule is warranted where: (I) the default is intentional or contumelious; or (II) the delay is inordinate, inexcusable, and prejudicial to the defendant, in that it gives rise to a substantial risk that a fair trial of the issues will not be possible.
81Under the first situation the case law provides that the default is intentional or contumelious where there is (a) no reasonable explanation for the delay/default and (b) there is an element of disrespect to the court, usually involving a breach of one or more court orders: Langenecker v. Sauvé, 2011 ONCA 803, 286 O.A.C. 268, at para. 6.
82As to the alternate second circumstance warranting dismissal of an action for delay, this is engaged where the delay is inordinate, inexcusable, and prejudicial to the defendant, in that it gives rise to a substantial risk that a fair trial of the issues will not be possible. Inordinance is measured "by reference to the length of time from the commencement of the proceeding to the motion to dismiss": Langenecker, at para. 8; Ticchiarelli, at para. 15. It is also a contextual inquiry that depends on the nature of the case: Langenecker, at para. 8.
83A delay is inexcusable where there is no "reasonable and cogent" explanation for it: Langenecker, at paras. 9-10; Ticchiarelli, at para. 16.
84There is a presumption of prejudice "inherent in long delays" that increases with the length of delay: Langenecker, at para. 11.
85The moving defendant bears the ultimate burden on a rule 24.01 motion; however, the plaintiff bears an evidentiary burden to (I) provide a reasonable explanation for the delay; and (II) rebut the presumption of prejudice arising from the delay: Langenecker, at paras. 10-12; Ticchiarelli at paras. 27-29.
86While the conduct of the plaintiff and its principal Alyousef in terms of their non-compliance with court orders has been found to be contemptuous on five occasions in related litigation, their breaches of court orders were not causally related to the prosecution of this action and as such, I cannot conclude that the delay and default that I have found in my reasons above were intentional or contumelious. I must state, however, that this was a close call.
87As to the plaintiff's burden under rule 24.01 to provide a reasonable explanation for the delay, as I have outlined above in my findings on the rule 48.11 motion, the plaintiff has failed to provide any explanation for the delay in this action from its inception in 2012. Furthermore, I reject any suggestion by the plaintiff that any portion of the delay in this action should fall at the feet of the defendant. The defendant rejected the plaintiff's request to conduct examinations for discovery prior to the action being struck from the trial list on the basis that the plaintiff had failed to pay the costs associated with the contempt proceedings in the sum of $56,300. After the action was struck from the trial list, counsel for the plaintiff presented a discovery plan to defendant’s counsel. The defendant rejected the proposed discovery plan given that the action had been struck from the trial list.
88It is the responsibility primarily of the plaintiff to move an action along: Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671, at para. 18.
89I have concluded, for the reasons expressed above, that the delay in the prosecution of this action is entirely the responsibility of the plaintiff and no reasonable, cogent, sensible, and persuasive explanation has been provided by the plaintiff as to the cause of this delay and as such I have concluded that the delay is inordinate and inexcusable.
90As to the plaintiff's evidentiary burden to rebut the presumption of prejudice arising from the delay, there is no evidence from the plaintiff, as has been noted above, other than bald assertions that the defendant would suffer no prejudice if the action would proceed. Thus, the plaintiff has failed to discharge the evidentiary burden under rule 24.01. Furthermore, I have concluded that a reasonable inference to be drawn from the totality of the evidentiary record and the history of this action is that there is more than a reasonable likelihood that given the passage of time and its impact on witnesses' memories, and the lack of documentary and oral discoveries, there is a substantial risk that a fair trial of the issues at stake will not be possible.
91In the result, I have concluded that the defendant's motion must be granted and that the action shall be dismissed for delay.
92Additionally, the CPL registered by the plaintiff against the defendant's Property shall be discharged and removed from title and any ancillary orders required to give effect to this order may be sought following the release of these reasons.
Disposition
93For the reasons outlined above, the plaintiff's motion seeking an order to restore this action to the trial list is dismissed and the defendant's motion seeking an order dismissing the action for delay is hereby granted.
94In the event the parties are unable to resolve the issue of costs, counsel for the defendant shall serve and file the defendant's cost submissions in respect of both the motions and the action along with a Bill of Costs within twenty (20) days. The plaintiff shall file similar submissions within 20 days thereafter. Submissions are limited to three pages plus the Bill of Costs. No reply submissions are to be filed without leave.
Daley, J. Released: February 19, 2021